WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; HERCULES INDUSTRIES, INC., a Colorado corporation, Plaintiffs - Appellees,
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Defendants-Appellants. AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF AMERICANS RABBIS; WOMEN OF REFORM JUDAISM; HINDU AMERICAN FOUNDATION; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; ANTI-DEFAMATION LEAGUE; HADASSAH, THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA, INC.; INTERFAITH ALLIANCE FOUNDATION; NATIONAL COUNCIL OF JEWISH WOMEN; RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE; UNITARIAN UNIVERSALIST ASSOCIATION; UNITARIAN UNIVERSALIST WOMEN'S FEDERATION; LIBERTY, LIFE AND LAW FOUNDATION; AMERICAN CENTER FOR LAW AND JUSTICE; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER; PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES; CATHOLIC MEDICAL ASSOCIATION; EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; ARCHDIOCESE OF DENVER; ARCHDIOCESE OF PUEBLO; ARCHDIOCESE OF COLORADO SPRINGS; ASSOCIATION OF GOSPEL RESCUE MISSIONS; PRISON FELLOWSHIP MINISTRIES; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; NATIONAL ASSOCIATION OF EVANGELICALS; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE; THE C12 GROUP; CHRISTIAN LEGAL SOCIETY; UNITED STATES JUSTICE FOUNDATION, EAGLE FORUM; BART STUPAK; DEMOCRATS FOR LIFE OF AMERICA; BREAST CANCER PREVENTION INSTITUTE; BIOETHICS DEFENSE FUND; LIFE LEGAL DEFENSE FOUNDATION, Amici Curiae.
(D.C. No. 1:12-CV-01123-JLK) (D. Colo.)
Before KELLY, LUCERO, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
Scott M. Matheson, Jr. Circuit Judge
Kathleen Sebelius, Secretary of Department of Health and Human Services ("HHS"), appeals the district court's order granting the plaintiffs' motion for a preliminary injunction barring enforcement of an HHS regulation requiring employer-provided group health plans to cover certain contraceptive drugs and services. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.
Hercules Industries, Inc., a for-profit Colorado corporation, and five of its controlling shareholders and/or officers (collectively, the "Newlands") brought suit in Colorado district court seeking an exemption from an HHS regulation requiring that employer-provided health plans cover all contraceptive drugs and services approved by the Food and Drug Administration (the "Regulation"). 45 C.F.R. § 147.130(a). Hercules and the Newlands contend that compliance with the Regulation would violate their sincerely held religious beliefs about contraceptives.
The plaintiffs sought a preliminary injunction barring HHS from enforcing the Regulation against them, claiming that the Regulation substantially burdens their religious exercise in violation of the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb-1. The district court granted the preliminary injunction, and HHS timely appealed.
After both parties had filed their briefs, this court decided Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc). That case involved materially similar facts and resolved questions of law applicable to this case. In Hobby Lobby, two for-profit corporations (collectively, "Hobby Lobby") and their individual owners challenged the same Regulation on RFRA grounds. This court reversed an Oklahoma district court's denial of Hobby Lobby's request for preliminary injunction, holding that the corporations were "persons" within the meaning of RFRA; that compliance with the Regulation would substantially burden the corporations' religious exercise; and that the Regulation was not narrowly tailored to achieve a compelling interest. Id. at 1121, 1128, 1142-43.
The en banc court therefore determined that the Hobby Lobby plaintiffs had satisfied two of the four preliminary injunction factors: (1) they were substantially likely to succeed on the merits of their RFRA claim, id. at 1145; and (2) they would suffer irreparable injury without the injunction, id. at 1146. We remanded to the district court to consider the remaining two preliminary injunction factors: (3) whether the likely harm to plaintiffs without the preliminary injunction outweighed the likely harm to HHS as a result of the injunction; and (4) whether the injunction was adverse to the public interest. Id. at 1121-22, 1146; see also Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (reciting the preliminary injunction factors).
HHS has filed a petition for certiorari with the Supreme Court, seeking review of our Hobby Lobby decision. Petition for Writ of Certiorari, Sebelius v. Hobby Lobby, No. 13-354 (U.S. Sept. 19, 2013). This petition remains pending as of the date of this order and judgment. For the reasons discussed below, we affirm the district court's preliminary injunction order and remand with instructions to abate further proceedings pending the Supreme Court's completion of its consideration of the Hobby Lobby case.
We review a district court's decision to grant a preliminary injunction for abuse of discretion. See Awad, 670 F.3d at 1125. "To obtain a preliminary injunction, [Hercules] must show that four factors weigh in [its] favor: (1) [it] is substantially likely to succeed on the merits; (2) [it] will suffer irreparable injury if the injunction is denied; (3) [its] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest." Id. (quotations omitted).
A. Likelihood of Success on the Merits
The district court granted a preliminary injunction without determining whether Hercules or the Newlands were substantially likely to succeed on the merits. Newland v.Sebelius, 881 F.Supp.2d 1287, 1296-97 (D. Colo. 2012). It applied a relaxed preliminary injunction standard that allows relief without a showing of likelihood of success. Under the relaxed standard, a district court may grant a preliminary injunction when "the equities tip strongly in favor" of the party seeking the injunction and the merits questions "are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." Id. at 1294 (quoting Okla. ex rel. Okla. Tax Comm'n v. Int'l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006)). It is not ...